Adverse Action Updated

The 4th Circuit Court of Appeals has redefined adverse action in a recent case involving an employee working for the Social Security Administration. In this episode, Pandy shares some insight on what to consider and the importance of communication when changing an employee's job in any way and for any reason.

Transcript

Speaker: 0:19

How many of you have heard me talk about adverse action? And not too much. And I think we need to talk about it because the Fourth Circuit Court of Appeals just came through with a new decision. And though it's only affecting the individuals in the Fourth Circuit, we need to keep an eye on this because I see this as being a decision that could very well spread across the country. Thanks for listening in today. Adverse action. Normally we're talking about something very negative. If you recall in some of our earlier podcasts, we've talked about adverse action within background checks. If someone gets a background check and it comes back a bit negative, well, they can claim adverse action and look into it and try to clear it up, especially if if employment is being denied to them based on what the report says. Well, once they're employed, an adverse action within employment would be a demotion of some sort, maybe even a pay cut. Obviously, it can certainly be a termination because it would be something of a major disadvantage. It would be a significant loss of some sort, obviously, their compensation and employment. And in the past, individuals, you know, claiming adverse action within an employment decision would seriously have to show a significant detriment effect. Well, here recently in the Fourth Circuit, and actually let me explain, that covers the states of Maryland, North Carolina, South Carolina, West Virginia, and Virginia. They made a decision here recently, just a couple weeks ago, in a determination of an individual who had asked for an accommodation under ADA, where the organization actually demoted her. I'm saying demoted because what they did was they moved her. She first asked for remote work. And then they decided, well, yeah, we'll give you a remote work. We're not going to change your pay, but we're going to take away your supervisory responsibilities. I've heard similar talk about, you know, making it easier for individuals, especially during times when they need an accommodation, or there aren't, what they consider to be 100% of what they once were, or maybe they're not in comparison to others. We look at them and go, uh, yeah, I think it'd be easier for them if we did this. And that might be how the the organization looked at this individual. But you know, what's crazy is to the employee, those supervisory responsibilities a great deal of why she loved the job. They were quite significant to her. So taking those away did bring a loss to the job. And once they realized that, it was too late. She had already sued them, she'd already taken them to court. And one court said, Oh, yeah, no problem, no problem. But she took it to the Fourth Circuit. I mean, she took it straight up the ladder. And then the courts actually decided that employees only have to prove that they experienced some disadvantages, some kind of a disadvantage or change in an employment term or condition. So the pay could stay the same. But when she expressed the importance of the responsibilities and that she had that taken away from her as a supervisor, all bets were off. So I'm asking you, how are you communicating to your employees? I was with a group this morning in North Carolina, and I just, you know, boldly just asked them, how are you communicating with your employees when you're going to make a change? So many times we kind of pull out of our back pocket and say, well, you know, that we're going to restructure, and this is based on the needs of the business. I'm all for those terms. You have to make every decision based on the needs of the business. And it's totally okay to restructure. But what are we doing to the employees at the same time? I sometimes think that we're not sharing enough information, or we're only sharing enough that we feel comfortable with versus helping the employee feel good with the change. Did this organization truly mean to take something away from her just because she's disabled or on an accommodation? Only they know. But we go back to what can we control and what can't we control? If the individual is legitimately, you know, has the right to have an accommodation, then we've got to be very, very careful about what we do with that individual's skill sets. What we do in altering the positions or the responsibilities to make those accommodations. And are we bringing the employee along or are they kicking and screaming behind us? We have to make sure that our communication, our narrative, our intent are all in the best interest of not only the company, but also the employee. Adverse action is just one of those things where I think we don't spend a lot of time talking about it, we don't spend a lot of time thinking about it, or educating our supervisors and the boots on the ground on how to properly communicate when we do have to make a change. Think about it. Adverse action is not something that you can avoid because at some point in your career, you're going to have to deal with one of these topics or one of these situations. But if the different courts across the country are going to start viewing things a little differently, which they always have. Change is the only constant in the universe, then we need to stay up with it too. So those of you across the country know that it's coming, that it's a possibility, and start talking to your management, talk to your leadership, and let's start partnering now so that we make sure that if we're going to make a change, we're making it in the right way and at the right time. All right, there you are. I want to thank Mark, I want to thank Monica, I want to thank all of you who've been sending us comments, who've let us know that you're enjoying the show. Remember, it's your show. So tell us know what you want to hear, right here at the Human Resource.